Underground Appeal: A Sample of the Chronic Questions in Copyright Law Pertaining to the Transformative Use of Digital Music in a Civil Society – Note by Chris Johnstone

Throughout the 1970s, the Bronx borough of New York City was perceived as a microcosm of desolate American urban hopelessness. Within this economically barren wasteland, the city’s culture cultivated a colorful new form of musical art, organically sown from the seeds of the past. What was born as a fringe musical movement has evolved into an American cultural mainstay. Today, hip-hop music experiences tremendous mainstream success, both as a credible art form and as a business. Yet the success and proliferation of this genre has largely relied on the use of samples of past funk, rock, and soul compositions.

Copyright law was established as a mechanism for the promotion of innovation. In the realm of digital sampling, however, its role remains somewhat unclear. It is obvious that unauthorized copying of original compositions should be unlawful, but the extent of this protection remains a doctrinally elusive concept when applied to small or manipulated fragments of music. Specifically, the issue of digital sampling suffers from a lack of clear judicial guidance. Although sampling can clearly be translated into standard copyright doctrine, its exact fit has yet to be definitively declared by the judiciary. District courts have only sporadically tackled the topic, deterring potential litigants who fear the consequences of inconsistent doctrinal application.

This Note will look at the issue of digital sampling through the lens of recent commentary that suggests that copyright law exists, in large part, for the purpose of reinforcing democratic principles such as informed debate, pluralism, and civic participation. It will attempt to unravel the tangled doctrine regarding digital sampling to demonstrate the pitfalls of the present regime, and will later suggest more appropriate guidelines for the recording industry that will minimize unnecessary fees and eliminate deadweight economic loss.